An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA 02-673


Filed: 1 July 2003


v .                         Cumberland County
                            No. 97 CRS 37393

    Appeal by defendant from judgment entered 12 May 1998 by Judge Robert F. Floyd in Cumberland County Superior Court. Heard in the Court of Appeals 13 March 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Christopher W. Brooks, for the State.

    Parish & Cooke, by James R. Parish, for defendant-appellant.

    HUDSON, Judge.

    On 1 December 1997, the Cumberland County Grand Jury indicted defendant for second degree murder. Defendant's case was called for trial on 11 May 1998 in the superior court before Judge Robert F. Floyd, Jr. On 12 May 1998, after a jury was impaneled, defendant entered a plea of guilty as charged. Under the terms of the plea agreement, the defendant and the State agreed to leave sentencing to the discretion of the court.
    At the sentencing hearing, Judge Floyd determined that defendant's prior record points made him a Level IV, and found two mitigating factors and no aggravating factors. He then imposed a sentence in the mitigated range, with a minimum term of 151 months and a maximum term of 191 months in the custody of the Departmentof Corrections.
    On 5 February 2001, defendant pro se filed a Motion for Appropriate Relief in the superior court in Cumberland County. By order 2 July 2001, Judge Jack A. Thompson determined that defendant's trial counsel failed to advise defendant that he had the right to appeal the calculation of his prior record level. Judge Thompson appointed counsel to file a petition with this Court for defendant solely on that issue. Judge Thompson denied and dismissed the remaining claims contained in defendant's Motion for Appropriate Relief.
    On 8 February 2002, defendant filed a “Petition for Writ of Certiorari to the Superior Court of Cumberland County” with this Court requesting review of the judgment and commitment entered in this case. By order 22 February 2002, we allowed the petition for the purpose of reviewing the prior record level calculation, and remanded the case for the superior court to determine whether defendant was entitled (1) to the appointment of counsel; (2) to proceed as an indigent; (3) to a copy of the transcript at the State's expense; and (4) to be released on bond pending appeal, and then for the appeal to proceed, being deemed taken as of the date of the trial court's determination.
    On 10 March 2002, the trial court ruled that defendant was entitled to the appointment of counsel, to proceed as an indigent and to have a copy of the transcript prepared at the State's expense. The trial court denied defendant release on bond pending appeal. The record on appeal was docketed 29 May 2002.    Defendant's sole assignment of error is that the trial court erred in its calculation of defendant's prior record level. Defendant contends that there was insufficient evidence of his out- of-state convictions to find that his prior record level was IV. For the following reasons, we affirm the trial court.
    Pursuant to G.S. . 15A-1340.14, prior convictions shall be proved by any of the following methods:
        (1) Stipulation of the parties.

        (2) An original or copy of the court record of the prior conviction.

        (3) A copy of records maintained by the Division of Criminal Information, the Division of Motor Vehicles, or of the Administrative Office of the Courts.

        (4) Any other method found by the court to be reliable.

G.S. . 15A-1340.14(f) (1998 Cum. Supp.). Under this section, the “State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the court is the same person as the offender named in the prior conviction.” Id. Moreover, “[t]he original or a copy of the court records . . . is prima facie evidence that the offender named is the same person as the offender before the court, and that the facts set out in the record are true.” Id.
    In State v. Hamby, a case factually similar to one here, this Court noted that the defendant, in her plea agreement
        admitted that her prior record level was II, that punishment for the offense could be either intermediate or active in the trial court's discretion and that the trial courtwas authorized to sentence her to a maximum of forty-four months in prison. By these admissions, defendant mooted the issues of whether her prior record level was correctly determined, whether the type of sentence disposition was authorized and whether the duration of her prison sentence was authorized. Therefore, defendant could not have raised any of the issues enumerated in N.C. Gen. Stat. § 15A-1444(a2) (Cum. Supp. 1996) in her appeal. Because defendant could not have raised those issues, she had no right to appeal in this case.

129 N.C. App. 366, 369-70, 499 S.E.2d 195, 197 (1998). Based upon that stipulation as to her prior record level, this Court dismissed her appeal.
    More recently, in State v. Eubanks, this Court reviewed the following exchange that occurred between the prosecutor, defense counsel, and the trial court:
    THE COURT: Evidence for the State?

    [THE PROSECUTOR]: If Your Honor please, under the Structured Sentencing Act of North Carolina, the defendant has a prior record level of four in this case, Your Honor.

    THE COURT: Do you have a prior record level worksheet?

    [THE PROSECUTOR]: Yes, sir, I do.

    THE COURT: All right. Have you seen that, Mr. Prelipp [attorney for defendant]?

    MR. PRELIPP: I have, sir.

    THE COURT: Any objections to that?

    MR. PRELIPP: No, sir.
151 N.C. App. 499, 504-05, 565 S.E.2d 738, 742 (2002). The Court noted that “[t]here is no question that a worksheet, prepared and submitted by the State, purporting to list a defendant's priorconvictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” Id. at 505, 565 S.E.2d at 742. The Court, in finding no error in defendant's sentencing, held that “this colloquy might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's worksheet.” Id. at 506, 565 S.E.2d at 743 (citations and quotation marks omitted).
    Here, at the sentencing hearing, the court asked whether the State wished to present any evidence, at which point the following exchange occurred:
    [PROSECUTOR]: As to the actual prior record level, it appears the defendant has nine prior points. I have previously handed the record certified -- or photocopies of the certified records to counsel, and if I may hand them to the Court at this time so the Court can see them. I have them marked as State's Exhibit Numbers 1, 2, 3, 4 and 5. State's 1 is a -- supports the burglary charge, the unlawful weapons charge and the mob action charge which is contained on the worksheet and the remaining exhibits are damage to real property, all of these coming out of Illinois; a battery charge, which is consistent with assault on a female here; violation of protection order, which are analogous to violations of Chapter 50B convictions here; violation of order of protection and domestic battery, again like assault on a female.

    THE COURT: Any objection to the Court receiving State's Exhibits 1 through 5?

    [DEFENSE COUNSEL]: No, Your Honor.

    THE COURT: The Court will receive those items into evidence for purposes of sentencing. Defense counsel had an opportunity to review the worksheet that has been handed up?

    [DEFENSE COUNSEL]: I have.

    THE COURT: You in agreement with the information contained thereon?

    Here, as in Eubanks, we believe that “this colloquy might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's worksheet.” Eubanks, 151 N.C. App. at 506, 565 S.E.2d at 743.
    Assuming arguendo that defense counsel's acknowledgment of the contents of State's exhibits one through five do not constitute a stipulation, we note that the State submitted into evidence more than a mere worksheet listing defendant's prior convictions. State's exhibits one through five were, in fact, copies of defendant's out-of-state convictions and were in accordance with the provisions of G.S. .. 15A-1340.14(e) & (f).
    Judges MCGEE and STEELMAN concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***